It is important to note that the House of Lords is not empowered to strike down primary legislation, which it finds incompatible with the Convention: only Parliament can do that. So, for now at least, Section 23 remains on the statute book – and the detainees remain in detention. It remains to be seen whether the Government will bring forward proposals to repeal Section 23, or amend it in an attempt to make it compatible with the Convention. Given its desire to appear “tough on terrorism” in the run up to the General Election, the Government may be in no hurry to do so.
The background to this is as follows. In November 2001, the Government wanted to detain indefinitely a small number of foreign nationals, who were said to be a threat to national security and to have links with “international terrorism”, but against whom it was said there was insufficient evidence to mount a prosecution, and whom it was illegal to deport.
In principle, it is possible to deport such individuals under the 1971 Immigration Act on the grounds that their presence in the UK is deemed to be, in the words of the Act, “not conducive to the public good”. Furthermore, holding them in custody prior to deportation, even though they haven’t been convicted of an offence, is not incompatible with the European Convention, because Article 5(1)(f) provides for the detention of “a person against whom action is being taken with a view to deportation”.
However, a problem arises if there isn’t a country to which such individuals can be safely deported. Article 3 of the Convention says: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. It is the duty of the UK, as a signatory to the Convention, to safeguard everybody in its jurisdiction from such treatment, including those it wishes to deport. It is therefore contrary to Article 3 of the Convention for the UK to deport an individual to a country where he may be subject to such treatment.
To complicate matters further, the European Court of Human Rights in Strasbourg determined in the case of Chahal v United Kingdom (1996) 23 EHRR 413 that an individual cannot be detained indefinitely, while a safe country is sought. Chahal, who was an Indian citizen and a Sikh separatist, couldn’t be deported to India lest his Article 3 rights be infringed and he had been in custody for six and a half years. The Court found his detention to be contrary to Article 5(1)(f) – because after six and a half years detention and no safe country in prospect for him to go to, it could no longer be said that “action was being taken with a view to deportation”.
So, in November 2001, when the Government set out to legislate, the legal position was that a non-national who faced the prospect of torture or inhuman treatment if returned to his own country, and who could not be deported to a third country, and who wasn’t charged with any crime, could not under Article 5(1)(f) of the Convention be detained here, even if he was deemed to be a threat to national security.
The Government’s “solution” was to derogate from its obligations under Article 5(1)(f) of the Convention, in order to legislate for the indefinite detention of such persons in Section 23 of the Anti-terrorism, Crime and Security Act 2001.
Under Article 15 of the Convention, entitled Derogation in time of emergency, signatory states may, in extreme circumstances, derogate from some articles of the Convention (including Article 5, although not Article 3). Article 15(1) says:
“In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law”.
On 12 November 2001, in an attempt to ensure that Section 23 was compatible with the Convention, the Home Secretary, David Blunkett, laid an Order under the Human Rights Act 1998 before Parliament, declaring that “a public emergency threatening the life of the nation” exists in the UK, and derogating from Article 5(1) of the Convention (in reality Article 5(1)(f)). A week later on 19 November, after considering the issue for 90 minutes from 10:30pm until midnight, the House of Commons approved the Order.
What justification did the Home Secretary give for declaring that such a “public emergency” existed in the UK? Primarily, because the US had been attacked a couple of months earlier. In the words of the Order:
“The terrorist attacks in New York, Washington, DC and Pennsylvania on 11 September 2001 resulted in several thousand deaths, including many British victims and others from 70 different countries. In its resolutions 1368 (2001) and 1373 (2001), the United Nations Security Council recognised the attacks as a threat to international peace and security.
“The threat from international terrorism is a continuing one. In its resolution 1373 (2001), the Security Council, acting under Chapter VII of the United Nations Charter, required all States to take measures to prevent the commission of terrorist attacks, including by denying safe haven to those who finance, plan, support or commit terrorist attacks.
“There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or of having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom.
“As a result, a public emergency, within the meaning of Article 15(1) of the Convention, exists in the United Kingdom.”
When the “public emergency” was declared, there had been no terrorist incidents in the UK associated with the 11 September attacks in New York and Washington. Nor have there been any since, but the “public emergency” still exists.
(There have been terrorist incidents, in Northern Ireland and in Britain, by dissident IRA groups, and by Protestant paramilitary groups, but, even though these have actually damaged life and limb, they didn’t get a mention in Blunkett’s justification for the existence of this “public emergency”).
Issues to be decided
In considering whether Section 23 of the Anti-terrorism, Crime and Security Act 2001 is compatible with the Convention, the House of Lords had to decide, inter alia:
(1) whether a public emergency exists in the UK within the meaning of Article 15 of the Convention, and
(2) whether the measures taken in Section 23 are “strictly required by the exigencies of the situation”, in other words, was detention without trial really necessary to deal with the threat allegedly posed by the individuals detained, and
(3) whether the measures taken were consistent with the UK’s other obligations under international law, including under the Convention itself.
With the exception of Lord Hoffman, all the Law Lords agreed that a public emergency did exist within the meaning of Article 15. But only one of them – Lord Walker – found that the provisions of Section 23 were necessary, and consistent with the UK’s obligations under international law. The rest agreed that these measures were disproportionate and, furthermore, their application to non-British nationals only constituted discrimination contrary to Article 14 of the Convention.
Before the Convention was brought into UK domestic law in the Human Rights Act 1998, the European Court of Human Rights in Strasbourg was the body to which appeal had to be made in cases claiming the denial of Convention rights. In Section 2(1) of the Human Rights Act, domestic courts are required to take account of the judgments of the European Court in adjudicating on these matters.
A public emergency?
As regards the declaration of “a public emergency threatening the life of the nation” under Article 15, it has been the practice of the European Court to accept that such an emergency exists, if a signatory state declares that one exists. The Court has even gone so far as to state formally that on this matter national authorities know best:
“By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it.” (Ireland v United Kingdom (1978) 2 EHRR 25, quoted by Lord Bingham, paragraph 18)
This deference by the Court to national authorities began when Gerry Lawless challenged his detention without trial in 1957 by the Irish Government. In Lawless v Ireland (No 3) (1961) 1 EHRR 15, the Court upheld the declaration of emergency by the Irish Government because of the ongoing IRA campaign in Northern Ireland, even though the only threat to the Irish state from that action was to extend it by six counties in accordance with its constitution.
It wasn’t surprising, therefore, that 8 of the 9 judges concurred with the Home Secretary’s assertion that “a public emergency threatening the life of the nation” within the meaning of Article 15 exists in the UK. Lord Bingham said:
“If … it was open to the Irish Government in Lawless to conclude that there was a public emergency threatening the life of the Irish nation, the British Government could scarcely be faulted for reaching that conclusion in the much more dangerous situation, which arose after 11 September.”
Only Lord Hoffman disagreed, and he did so vehemently:
“The Attorney General’s submissions … treated a threat of serious physical damage and loss of life as necessarily involving a threat to the life of the nation. But in my opinion this shows a misunderstanding of what is meant by “threatening the life of the nation”. Of course the government has a duty to protect the lives and property of its citizens. But that is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms. …
“This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. … Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community. …
“The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.” (paragraphs 95-97)
Lord Hoffman also pointed out that Spain had not declared the bombings in Madrid last March to be a threat to the life of the Spanish nation. In fact, none of the more than forty signatories to the Convention, other than the UK, has felt the need to derogate from the Convention, because of an alleged threat from Al-Qaeda. Lawyers for the detainees naturally questioned why the UK was uniquely threatened, to which the Attorney-General, Lord Goldsmith, replied that the difference in practice could be found in “this country’s prominent role as an enemy of Al-Qaeda and an ally of the United States” (quoted by Lord Bingham, paragraph 25).
What an interesting admission for the Government to make! This amounts to saying that the Prime Minister has increased the threat to life and limb in Britain by choosing to stand shoulder to shoulder with President Bush after 9/11, and following him into Afghanistan and Iraq. The threat to Britain is a result of foreign policy choices made by the Prime Minister; it can be reduced, if not eliminated, by different foreign policy choices. This magazine has said this on a number of occasions, but we never thought we would hear it from the mouth of the Government’s chief law officer.
Article 15 of the Convention requires that any measures taken by a member state in derogation of its obligations under the Convention should not go beyond what is “strictly required by the exigencies of the situation”. Lord Bingham addressed this question in paragraphs 30-44 of the judgment, and concluded that the detention provision in Section 23 did go beyond what was strictly required to meet the threat and Section 23 was therefore incompatible with Article 15.
The argument here hinged on the fact that the measures apply to non-nationals only, even though the Attorney-General admitted that a number of British nationals were regarded as posing an equally serious threat. Since it was reasonable to assume that other measures, short of detention without trial, are being taken against the latter, and these measures were presumably adequate to counter the threat posed, it stands to reason that such measures would be equally effective against non-nationals who cannot be deported. Plainly, therefore, the powers of detention in Section 23 are not strictly necessary.
The present treatment of people within the UK who are said to be a threat to national security, but who cannot be charged, is irrational. Only foreigners without a safe country to go to are subject to indefinite detention. Other foreigners are allowed to leave the country and presumably continue to threaten the UK and UK interests abroad. But British nationals who are said to be a threat are allowed to remain at large in the UK. It makes no sense whatsoever.
Article 15 of the Convention also requires that any measures taken by a member state in derogation of its obligations under the Convention should not be inconsistent with its other obligations under international law, including under the Convention itself.
The detainees’ lawyers argued that, in providing for the detention of suspected “international terrorists” who are not British nationals, but not for the detention of suspected “international terrorists” who are British nationals, Section 23 unlawfully discriminates against them, in breach of Article 14 of the European Convention. This Article, entitled Prohibition of discrimination, says:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 1 of the Convention obliges signatory states to see that Convention rights apply “to everyone within their jurisdiction”, not just to their own nationals, so the UK’s duty to see that the rights enshrined in Article 14 are enjoyed by foreign nationals in the UK, as well as by British nationals. Furthermore, the UK Government did not derogate from Article 14, prior to enacting Section 23. Therefore, the detainees’ lawyers argued, Section 23 discriminates against them in their enjoyment of liberty under Article 5.
(It is true that nationality is not specifically included as a forbidden ground for discrimination in Article 14. But the Attorney General accepted that “or other status” would cover the detainees’ immigration status, so there is no argument between the parties here. Nationality is also a forbidden ground of discrimination in the Race Relations Act 1976.)
On the issue of discrimination, Lord Bingham concluded:
“Article 15 requires any derogating measures to go no further than is strictly required by the exigencies of the situation and the prohibition of discrimination on grounds of nationality or immigration status has not been the subject of derogation. Article 14 remains in full force. … What cannot be justified here is the decision to detain one group of suspected international terrorists, defined by nationality or immigration status, and not another. To do so was a violation of Article 14.” (paragraph 68)
* * * *
Lord Bingham’s final remarks were:
“I would allow the appeals. There will be a quashing order in respect of the Human Rights Act 1998 (Designated Derogation) Order 2001. There will also be a declaration under section 4 of the Human Rights Act 1998 that section 23 of the Anti-terrorism, Crime and Security Act 2001 is incompatible with articles 5 and 14 of the European Convention insofar as it is disproportionate and permits detention of suspected international terrorists in a way that discriminates on the ground of nationality or immigration status. The Secretary of State must pay the appellants’ costs in the House and below.” (paragraph 73)
Labour & Trade Union Review